40 U.S. 233

15 Pet. 233

10 L.Ed. 721

The State of RHODE ISLAND AND PROVIDENCEPLANTATIONS, Complainants,

v.The Commonwealth of MASSACHUSETTS.

January Term, 1841

THIS case was before the court, at January term 1838 (12 Pet. 657); andagain, at January term 1840 (14 Ibid. 210).

A bill was filed in the supreme court, on the 16th of March 1832, by thestate of Rhode Island and Providence Plantations, asking the court to settlethe boundary between that state and the commonwealth of Massachusetts.Mr. Webster appeared for the commonwealth of Massachusetts.

After various proceedings in the case, a plea and answer to the bill of thestate of Rhode Island were filed by commonwealth of Massachusetts; and,at January term 1838, Webster, counsel for the commonwealth ofMassachusetts, 'moved to dismiss the bill, on the ground that the supremecourt had no jurisdiction in the cause.' A full report of the matterscontained in the bill, and in the plea and answer, will be found in 12 Pet.659-69. The question of jurisdiction was argued by Austin, Attorney-General of Massachusetts, and Webster, on the part of the commonwealthof Massachusetts; and by Hazard and Southard, for the state of RhodeIsland. The court ordered that the motion to dismiss the bill of thecomplainants should be overruled.

Afterwards, at the same term, 12 Pet. 755, Webster, in behalf of the stateof Massachusetts, as her counsel and attorney in court, moved for leave towithdraw the plea filed in the case on the part of the state ofMassachusetts, and also the appearance which had been entered for thestate. The court, after argument, on the 24th February 1838 (12 Pet. 761),ordered, 'That if the counsel for the state of Massachusetts shall elect towithdraw the appearance heretofore entered, that leave for the same beand was given; and the state of Rhode Island may proceed ex parte. Butthat, if the appearance be not withdrawn, that then, as no testimony had

been taken, the parties be allowed to withdraw or amend the pleadings,under such order as the court should thereafter make in the premises. Theappearance of the state of Massachusetts was not withdrawn; and the casewas argued, on the sufficiency of the plea, at January term 1840; the billof the complainants having been amended. 14 Pet. 210.

On the 8th of January 1841, the state of Massachusetts, by Austin,Attorney-General of the commonwealth, and Webster, 'for himself,' filedthe following demurrer to the complainant's bill:

The defendant, by protestation, not confessing all or any of the matters andthings in the complainant's bill of complaint contained to be true, dothdemur to the said bill, and for cause of demurrer, showeth: That no case isstated by the bill authorizing this court to grant the relief sought, or anyother relief: That no such mistake or fraud is averred in the bill, as issufficient to set aside the awards and agreements between the parties,therein stated, nor any other cause or reason sufficient for that purpose;and that these awards and agreements conclude the question: That the billstates nothing which can do away the effect of the possession byMassachusetts up to the line asserted by her to be the true line, whichpossession the bill itself admits to have been continued for more than acentury, and which possession is itself conclusive on the title: That the billstates no case for the interference of this court, with the line of divisionactually existing between two independent states, fixed by treaty,compact, or agreement between them, and acquiesced in for a century, asis true of this case, according to the bill itself: That this court has no poweror jurisdiction to disturb or interfere with a boundary line actually existingbeween two states, well known and defined, and resting on early compactand long-continued acquiescence and possession, upon any allegation offraud or mistake in the original transaction. Wherefore, and for diversother good causes of demurrer appearing in the said bill, the defendantdoth demur thereto, and asks the judgment of the court, whether saiddefendant ought to be ordered to make any further or other answer to saidbill; and prays to be hence dismissed with costs.

The demurrer was argued by Austin and Webster, for the state ofMassachusetts; and by Randolph and Whipple, for the state of RhodeIsland and Providence Plantations.

Austin, for the respondents, in support of the demurrer.—The object of theplaintiff is, by a decree of this court, to be confirmed and established inthe title, jurisdiction and sovereignty which she sets up to a portion ofterritory, now and ever heretofore, in the possession, jurisdiction and

sovereignty of the respondent. The bill describes this disputed territorywith reasonable accuracy, so that it is seen to be included between thepresent actual southern boundary of Massachesetts, and a line nearlyparallel thereto, drawn between nearly three and four miles due north fromit, along the whole border of Rhode Island, comprising an area of aboutone hundred square miles. The bill does not state that this territory isdensely inhabited, and under a high state of improvement; but if the courtcould judicially understand, that it is occupied by seven thousand people,all of whom, as did their ancestors to remotest time, deem themselves to becitizens, and most of them native citizens of Massachusetts; and that thereis upon it not less than a million of dollars of taxable property; theimportance of the controversy could not be doubted.

The bill sets forth the alleged title of Rhode Island to the territory indispute, and claims it as included in the charter of Charles II. It describesaccurately the title of Massachusetts to the territory secured to her by hercolonial and provincial charters, the one granted in 1629, and the other in1691; and alleges that her southern boundary is by a line, 'three Englishmyles on the south parte of the rivir called Charles rivir, or of any orevery parte thereof;' and further alleges that the southern boundary ofMassachusetts, and the northern boundary of Rhode Island, is by the sameline; the one being contiguous to the other. All this is true. The bill aversthat the actual line of possession on the part of Massachusetts, is morethan three miles, viz., several miles south of Charles river, and of any andevery part thereof. On this allegation, it is obvious, the whole assumedmerits of the plaintiff's case depend. If it be not true, there is no pretenceof right to disturb the ancient and existing possession of the respondent.

Whether it be true or not, in point of fact, must depend on a legalconstruction of the words of the charter. As illustrative of that question,and not, in the present aspect of the case, for any purpose of deciding it,the maps and plans of the territory heretofore used, and now before thecourt, may be referred to. By universal admission, the Charles river hasone main or principal stream, which is supplied by other streams orbranches. If these latter streams, which have also local names, are any partof Charles river, within the meaning of the charter, then the actual line ofMassachusetts, which is within three miles of the principal branch(sometimes locally called Mill river, at others, Jack's Pasture brook), isthe true boundary by her charter. If the main stream, and not the head-waters, is alone entitled to be termed 'Charles river, or any and every partthereof,' then, unquestionably, the actual line of Massachusetts is not inconformity with the charter; because, in ancient times, it was assumed,and now is believed to be true, that the true point of off-set for the

protraction, southwardly, of the line of three miles from any part ofCharles river, is from the most southerly stream, branch of head-waters ofthe river, and it was accordingly so drawn. It is believed, that such is, andever was, the universal acceptance of the terms; and that wherever adifferent construction was put on the like phraseology, it was theconstruction made by power in violation of right.

But the case not stands before the court on demurrer; and in this form ofpleading, the counsel for Massachusetts very well understand, that thisquestion of fact is not open to discussion. They are bound by theallegations of the bill, and must proceed to a hearing with this fact, prohac vice, against them; and with an admission that the line of actualpossession is not the true line of the charter. It is with full confidence inthe opinion that the bill (even admitting this great and fundamental erroron the part of Rhode Island, to be received as she has stated it) does not setforth a sufficient cause for the interposition of this court, thatMassachusetts has ventured to waive this consideration for the present;and to deny that even on this presumptions, Rhode Island has any title, byher own showing, to the territorial jurisdiction which she demands by herbill. We suppose, indeed, this is already settled by this court in effect,though not in form. The bill incorporates the defence of Massachusetts, ontwo other points; which, independent of the original accuracy of theboundary, are each, by itself, fatal to the plaintiff's demand. It admits thefact of an amicable settlement in 1710 and 1718, and the further fact of anactual possession on the part of Massachusetts, under and by virtue of suchagreements, for now nearly a century and a half.

It is again obvious, that the question of right between these partiesdepends—1. On the original correct location of the boundary line. 2. Onthe effect of the agreements in establishing a boundary. 3. On theundisturbed possession for more than one hundred years.

On the former hearing in this case, the respondent had filed a plea in bar,setting out, more fully than the plaintiff had done, the agreements of 1710,1718; and relying upon them as fair and perfect contracts, made fairly,with full and equal knowledge, and accompanied and followed by anundisturbed possession from the time they were made. We understood thecourt to overrule that plea, because it contained two defences instead ofone; upon a strict application of the severest rules of chancery practice,which, with great respect, we had contended could not apply to a case likethe present, and were in no case applicable to the plea, in the form inwhich it was presented.

In pronouncing the opinion of the court, the chief justice said,

1 'The defence set up by the plea is twofold: 1. That there was an accord andcompromise of a disputed right. 2. Prescription, or an unmolested possessionfor more than one hundred years. These two defences are entirely distinct, anddepend upon different principles.' And after considering them separately, thechief justice further remarks, 'here, then, are two defences in the same plea,contrary to the established rules of pleading.' And again, upon the form ofpleading, the opinion of the court is to the following effect: 'A plea, in general,supposes that the bill contains equitable matter, which the defendant, by hisplea, seeks to displace. It is according to this principle of equity pleading thatwe have treated the case before us. If a defendant supposes that there is noequity in the bill, his appropriate answer to it is a demurrer; which bringsforward at once the whole case for argument. The case of Milligan v. Mitchell,3 Cranch 220, 228, illustrates this rule, and shows that the defence here takenwas more proper for an answer or demurrer than a plea.' 'If the defendantsupposes that the bill does not disclose a case which entitles Rhode Island tothe relief she seeks, the whole subject can be brought to a hearing by ademurrer to the bill.' 'The whole case is open, and upon the rule to answerwhich the court will lay upon the defendant, Massachusetts is entirely at libertyto demur or answer, as she may deem best for her interests.'

2 It seemed to us, that the court, having thus decided, not, indeed, that we had thetwo valid defences set forth in our plea, but that, if in truth we did possess them,either was in itself a bar, though both could not be joined in the then presentform, permitted, if they did not invite, us to present them under such form aswould authorize a joinder of both, and a consideration of either, independent ofthe other. We had hope, therefore, that the plaintiff, having, as we think,admitted both in his own declaration, would have been satisfied, that wheneverthey were considered, they would of necessity prevail.

3 The demurrer now joined presents these defences, with all others growing outof the plaintiff's own statement of the case. It is a familiar and well-establishedprinciple, that if, taking the allegations to be true, the bill would be dismissed atthe hearing, it may be dismissed on demurrer. Utterson v. Mair, 2 Ves. jr. 95.The object of a hearing is only to inquire whether the allegations are proved,and the effect of them. When, therefore, if proved or confessed, a decree mustbe had for defendant, the defendant may safely admit them, and may, therefore,as safely demur to the whole bill. Kemp v. Pryor, 7 Ves. 245; Brooke v. Hewitt,3 Ibid. 253; Verplank v. Caines, 1 Johns. Ch. 59. Unquestionably, the legaleffect of the facts admitted by demurrer or proof, may be a subject difficult to

settle; but in a clear case of want of title, or equity, the result of a demurrermust be in favor of the defendant. If, therefore, it shall now appear to the court,by the fair import of the plaintiff's admissions in his bill, that notwithstandingany departure from the charter boundary, for good and sufficient cause, thecolonies of Massachusetts and Rhode Island, by their authorized agents, settledthe location of boundary on this frontier, such settlement is valid; and the courtmust dismiss the bill.

4 Again, it appears to the counsel of Massachusetts, that if, without any regard tothe unascertained line described on paper in the charter of King Charles I., orany regard to any claim or any settlement with her neighbors, Massachusetts, inancient times, entered on the disputed territory, more than 130 years ago, andhas always possessed it, and exercised jurisdiction over it; that a title has beenacquired by that possession, independent of all other title by grant oragreement, which this court will not disturb. If the supposed agreement and thepossession, or either of them, are admitted by the bill, it is then apparent on theface of the bill, that the plaintiff has no cause of complaint, and on demurrer,the bill may be dismissed.

5 But in addition to these points of defence, the defendant has yet another on theface of the bill. The plaintiff, to recover, must depend on the strength of hisown title, not on the weakness of the defendant's. The plaintiff's title is set forthin the bill. It mainly depends on the charter granted to Rhode Island by CharlesII., on 8th July 1663. Now, if, under the circumstances of the case set out in thebill, at the time this charter was granted, the disputed territory was not in lawcreated a part of the colony of Rhode Island then established, the plaintiff mustfail on demurrer. That it never passed by such charter to the then new colony ofRhode Island, we think could be made very clear by other records andproceedings, which history has preserved; but the question for this court tosettle on the present state of the pleadings will be, how does the title of theplaintiff appear on her own allegation in her bill?

6 It is proposed, therefore, to sustain the following propositions. 1. That, on theface of the bill, it sufficiently appears that the colony of Rhode Island andProvidence Plantations never had any charter title to the territory demanded. 2.That this territory never was any part of the state of Rhode Island. 3. That bythe bill, it sufficiently appears, that if her title, as now claimed, ever vested bycharter, still it is lost by force of the agreements of January 1710, and October1718, and the proceedings of May 1719, set forth therein. 4. That there has beenan adverse possession of more than one hundred years, apparent by the bill,which is conclusive against any other claim of title.

7 In considering the bill with reference to these propositions, two rules of lawhave an important bearing. 1. That although a demurrer admits all the facts wellpleaded; it admits facts only, and not the conclusions of law. Ford v. Peering, 1Ves. jr. 76. 78; 2 Madd. Chan. 224. 2. The plaintiff can have no better case onproof; and no remedy for any other case, than is stated in her bill. Thisprinciple, however familiar, is in its exact application exceedingly important inthis case. It has recently received the attention of this court. Boone v. Chiles, 10Pet. 209. See also 4 Madd. 21, 29; 3 Wheat. 527; 6 Ibid. 418; 2 Ibid. 380; 2 Pet.612; 11 Wheat. 103; 6 Johns. 559, 563; 7 Pet. 274

8 I. To the first point, then. How does Rhode Island claim the premises? Her titleto anything rests on her charter from Charles II., dated 8th July 1663. In thischarter, she has no northern boundary, by natural objects or line of latitude. Sheis bounded on the southerly line of the Massachusetts colony or plantation.Where that line was, must be ascertained by examining the colony andplantation of Massachusetts; and in this position of the cause, it is admitted,that the bill furnishes the only evidence. But it is well enough there stated. Thecolony of Massachusetts is the elder by thirty-five years. All the charters are setout in the bill. First, is the grant of King James to the council of Plymouth, in1621, in which the southern boundary is described as 'lying within the space ofthree English miles on the south part of the said Charles river, or of any, or ofevery part thereof.' Next, is the deed of the council of Plymouth, to Sir HentryRosewell and others, 19th of March 1628, with the same boundary. Againfollows, the confirmation deed of Charles I., dated 4th of March 1629, with thesame description. Boston was settled in 1630, and the mouth of Charles river ison the west side of the city. Three miles south of it, would extend to Brookline,about thirty miles more northerly than the present claim of Rhode Island. It isnot from the mouth of the river, then, that the off-set of three miles is to bedrawn. At that period, and for many years after, the river was unexplored. Theancient maps, if it was proper to examine them, are all marvellously inaccurate.

9 In 1646, two persons called Woodward and Saffrey, and denominated 'skilfulapproved artists,' with or without authority, went into the interior to explore thecountry, make a map of it (the map is before us, and has been lithographicallycopied by the council of plaintiff), find the south branch of Charles river,measure three miles, and erect a monument in perpetual remembrance of thething. All this they did. The bill shows it. They established the boundary, tobegin in latitude 41° 55'. The monument, the supposed boundary, the linethence to be drawn, became known and notorious. Governor Dudley, ofMassachusetts, on a solemn occasion, sixty-eight years after, proclaimed it.Governor Jenckes, of Rhode Island, on the same occasion, admitted it. All thisis apparent on the bill. This demarcation, and the notoriety of it, at that ancient

time, in the wilderness, when it was important to draw a line, but of noimportance where it should be drawn, was a practical construction of thecharter, conclusive against all the world, unless indeed, the king of Englandmight be an exception. He never objected, and his silence was consent.

10 Massachusetts, as the bill shows, being thus, for twenty-one years, without aneighbor, settled up to, and in the language of that day, planted towards theline. Then the charter of Rhode Island was granted by Charles II., bounding thecolony of Rhode Island on the southerly line of the 'Massachusetts colony orplantation,' making no mention of the Massachusetts charter; but assuming, bythis new word 'plantation,' for the first time applied to Massachusetts, that heractual occupation was her charter limits. The colony of Massachusetts wasestablished by the royal charter, the plantation, by the act of the people. Thecharter of Rhode Island recognises the existence of Massachusetts as, at thattime, she existed in fact. If the grant to Rhode Island was intended to includethe space north of Woodward and Saffrey's station, which is nowhere sodeclared in the bill, and cannot be supposed, it would not convey any title froma grantor out of possession, and could, therefore, give, in this disputed territory,no claim to the colony. It is fairly to be inferred, that when a new colony was tobe erected at the south of Massachusetts, and was bounded on the said colonyor plantation, all the facts of the case were known; and that the boundary wasintended to conform to an existing state of things, which had so long beenpossessed under a demand of right. For forty-three years, the colony of RhodeIsland submitted and acquiesced in this location. Now, although the title bypossession forms a distinct subject of inquiry; yet, here it may be invoked, toshow that Rhode Island took no part of this territory by her colonial charter. Acharter, without possession under it, can form no evidence of title, after therevocation of that charter, on the 4th of July 1776. It is believed, that the greatrespect paid by this court, in repeated cases, to the validity of crown grants, hasnot extended to give validity to any grant of which actual possession was nottaken in a reasonable time; and that an adverse possession submitted to forforty-three years, is conclusive evidence that the territory in such adversepossession was not included in the terms of any other grant.

11 II. If this territory never passed to the colony, the state never had title to it; theclaim of the state being only as successor to the colony.

12 III. It appears on the face of the bill, that a dispute arose between the twocolonies in 1710, in regard to this line; and was settled by agreements or treatiesof compromise, in 1710, 1718, 1719. The bill distinctly alleges: 1st. A disputeor controversy. 2d. A commission to settle the controversy, commonly calledthe Roxbury commission. 3d. An unlimited authority to the commissioners of

each colony, by the legislature of each colony, to ascertain and settle the line.4th. An actual settlement, by an agreement, signed and sealed by thecommissioners, so far as to fix a point of beginning; and to establish Woodwardand Saffrey's monument as such point. 5th. That this settlement was acompromise; Massachusetts yielding one mile of soil in fee, and Rhode Islandwithdrawing all claim to jurisdiction over the disputed territory. And the billfurther admits a second commission, arbitrament and award, or more properly,a treaty; commonly called the Rehoboth agreement, by which othercommissioners were appointed, with unlimited powers, to agree and settle theline 'in the best manner they could;' and an agreement, as before, under seal,varying in some degree from the former, but precise, exact and particular, and asubsequent running of the line accordingly, upon the earth's surface, being theline which, from that time to this, has been the actual dividing line between thetwo parties; and which the plaintiff now seeks to disturb. Having thusintroduced the defendant's title into her bill, the plaintiff seeks to avoid it byseveral allegations. It is suggested not to have been within the legitimate powerof the colonies to make an agreement of boundary. To this, the case of Penn v.Lord Baltimore, 1 Ves. 444, is a sufficient answer.

13 The most material allegation is, that the agreement or treaty was the effect of amistake. This mistake is thus stated. The Massachusetts commissionersrepresented to the Rhode Island commisioners, that Woodward and Saffreywere skilful and approved artists, and in 1642, had ascertained the point orplace three miles south of Charles river, or of any and every part thereof; andhad there set up a stake; and the Rhode Island commissioners, relying on saidrepresentations, and believing them to be true, and verily believing the saidpoint or place to have been correctly ascertained, and the said place where thesaid stake was alleged to have been set up as aforesaid, to have been threeEnglish miles from Charles river and no more; the commissioners signed andsealed the agreement, which established the line of boundary. To this, therespondent replies, that it is the true character of this transaction, and not thename given to it in the plaintiff's bill, that is to lay the foundation for annullingan agreement otherwise binding upon the contracting parties.

14 The facts alleged are admitted by the demurrer; but whether they are to becalled, or whether they amount to, a mistake, is a conclusion of law, to bedetermined by the court. Now, it is certain, that to settle the boundary accordingto those charters, the commissioners must first have decided whether the head-waters were a part of Charles river. It is apparent also, that Woodward andSaffrey had, in their proceedings, determined that the head-waters were part ofthe river; they had set up their stake accordingly, and when the Massachusettscommissioners affirmed that it was in the right place, they only affirmed that

the head-waters were part of the river; and when the Rhode Islandcommissioners relied on said affirmation, and believed it to be true, theybelieved the same fact. It is observable, that the bill nowhere declares that therepresentation so made by the Massachusetts commissioners was wilfully false,or was intended to deceive, or that the Rhode Island commissioners acted orbelieved in consequence of such representation. These material allegations arecarefully avoided.

15 It does not appear, that the Rhode Island colony intended to settle the lineaccording to the charter, without variation; but on the contrary, that thecommission was to 'revise and compromise.' It is not averred, that the RhodeIsland commissioners intended to conform to the charter; but on the contrary, itappears, they were disposed to make an amicable settlement, and to take, infee-simple, an equivalent for territorial jurisdiction. It is thus plain, on theaverments of the bill, that what the plaintiff has been pleased to term mistake,was knowledge, compromise, reasonable concession and judicious settlement.All the subsequent proceedings having reference to this, depend on the samefacts, and are not materially varied by the form of the bill.

16 But if this was a mistake by these commissioners, what is its equitable effect?'It must not be understood, that in equity every kind of mistake is relievable, forthough equity will relieve against a plain mistake, or misapprehension, orignorance of title, yet equity will not interpose, if the fact is doubtful, or, at thetime of the contract, equally unknown to both parties; or if there has been a longacquiescence under the mistake, and neither party aware of it.' Fonbl. vol. 1, p.116, note to book 1, ch. 2, § 7. It appears by the bill, that Rhode Island reposedunder this mistake for forty years, without discovering her wrongs.

17 But this agreement and the subsequent ones are treaties. Ward's Law ofNations, ch. 15, p. 139; Vattel ch. 12, p. 192, 154. 'They are of a class ofcontracts which are never void for the mistake of the negotiators.' Ibid. 193, §157-8. See cases cited to this point, when this case was last before the court, 14Pet. 210. There can be found few cases where the negotiators of a treaty ofboundary are supposed to have made a mistake; and none, it is believed, where,for any such cause, the provisions of a treaty were ever deemed to be, or everwere suggested by diplomatists to be, void. It is part of the law of nations, that atreaty, once made, is irremediably conclusive. And the reason is, that it can beinquired about and explained only by itself. The peace of the world demandsthat it be an eternal estoppel between the parties. The boundary of the UnitedStates, by the treaty of Paris, of 1783; the designation of the River St. Croix, bycommissioners under the treaty of London, commonly called Jay's treaty; andthe results of the commission under the 4th article of the treaty of Ghent, are all

suspected, with more reason than the ancient treaty line of these colonies, tohave been settled by mistake; but who ever was guilty of the gigantic heresy ofmaintaining that a mistake could be inquired about in these national compacts,or that the discovery of the ignorance of the negotiators would nullify thecontract?

18 IV. The bill shows an undisturbed possession by Massachusetts for 113 years,under claim of title. The controlling power of time is a part of the law of thiscase, and reference is made to the authorities cited at the former hearing. Inaddition to these, there is now presented to this court the written autographicopinion of Lord MANSFIELD, when attorney-general of England, in the year1754, on the subject of this very boundary; in which that eminent juristdeclares, that 'if the king approves the agreement, it is now too late for theparties to dispute it.' 4th vol. Trumbull's MS. papers, Mass. His. Soc. Library.Possession alone, it is respectfully contended, in a case of this kind,uninterrupted and exclusive for more than a century, is not only a good title, butthe best of all possible titles. No other title gives, or was ever pretended to give,any right to the British crown to make conveyance of land or empire,jurisdiction or sovereignty, in this new world. By discovery or by conquest,possession was obtained, and hence possession became ultimate right. Whenthis possession was parted with, the right was lost, at least, in effect, against allthe rest of mankind but the royal authority. Now, this possession was lost to thecrown, and was gained by Massachusetts, before the colony of Rhode Islandwas planted, or her charter drawn upon parchment. It is against, therefore, herown possession, or the possession of her grantor, for ever, that the plaintiffdemands title.

19 It has been suggested, that it is not against claim of possession. To this it issubmitted, that no claim of possession can ever be admitted or considered in acourt of equity, but that claim that is made in conformity to judicialproceedings. While this principle is universally true, it derives additional forcefrom the fact, that there always was a paramount power capable of redressingthe injuries of the plaintiff, if, at any time, such injuries have been madeknown. From 1740 to 1776, there was a regular appeal allowed to the king incouncil. From the adoption of the confederation, until the existence of theconstitution of the United States, authority to redress such injury vested incongress. From that time to the present, this high court has been the arbiter ofinternational controversies between the states of the Union. The bill admits,that no judicial effort has been made to bring the dispute to an issue.Occasionally, indeed, Rhode Island has complained. Once in about everythirty-five or forty years; that is, once in every generation of statesmen, ofwhich her soil has been prolific, she moaned over the loss of a right which she

never possessed; but her murmurs never reached the temple of the law, andnever were serious enough, or loud enough, for that purpose. She was too weak,or too feeble, or too poor, it may seem by the bill; and although we would nothear her enemy say this; yet, if it be admitted by demurrer, it is mere admissionof form; for she never wanted the intellectual or moral qualities which such anexigency demanded. But the admission of her distress may be safely made. It isas inoperative in law, as it is incredible in fact. Distress and embarrassment areno bars to the operation of time. Hovenden v. Lord Annesley, 2 Sch. & Lef. 632.

20 It remains only to inquire, if the objections thus fatal on the face of the bill,may be taken advantage of by demurrer. To this point the court is referred tothe following cases: Mitf. Plead. 99, 100, 102, 144, of the English edition;Kuypers v. Reformed Dutch Church, 6 Paige 570; Humbert v. Trinity Church, 7Ibid. 195; Utterson v. Mair, 2 Ves. jr. 95; Brooke v. Hewitt, 3 Ibid. 253; Hardyv. Reeves, 4 Ibid. 476 (this case was reviewed and confirmed in Hovenden v.Lord Annesley, 2 Sch. & Lef. 632, and the opinion of the lord chancellor, p.637, especially noticed); Hodle v. Healey, 1 Ves. & B. 536; Brooks v. Gibbons,4 Paige 374; 1 Jac. & Walk. 195.

21 Whipple, for the complainants; with whom was Randolph.—The object of theplaintiff's bill is to obtain possession of jurisdiction over a territory about fourand a half miles wide, north and south, by about twenty miles long, east andwest. This territory constitutes, we say, the northern border of Rhode Island,and is included in the charter granted to Rhode Island, by the crown of England.On the contrary, it is contended by Massachusetts, that this territory constitutesher southern border, and is included in her charter. The object of thecontroversy, therefore, is to settle the dividing line between two conterminousstates, so far as it involves the rights of the parties to jurisdiction. The right tothe soil is not in dispute.

22 Massachusetts has demurred to the whole of the plaintiff's bill; and the questionis, whether, taking the case as it is presented by that bill, Rhode Island isentitled to relief. The first and most obvious inquiry, therefore, is, what are thefacts set forth in the bill?

23 The leading and prominent facts are: 1st, The charters of the crown to the twostates of Massachusetts and Rhode Island. By the Massachusetts charter, hersouthern line or boundary, is declared to be 'within the space of three Englishmyles on the south parte of the saide river called Charles river, or of any, orevery, parte thereof.' The northern boundary or line of Rhode Island, is declaredby her charter to be, 'and from thence by a straight line, drawn due north until itmeets the south line of the Massachusetts colony; and on the north, or

northerly, by the aforesaid south, or southerly, line of Massachusetts.'

24 By the Massachusetts charter, dated in 1629, the said Henry Rosewell et al. arecreated 'a corporation by the name of the Governor and Company ofMassachusetts Bay;' which said officers shall apply themselves to take care forthe best disposing and ordering of the general business and affairs of, for andconcerning the said lands and premises hereby mentioned to be granted, andthe plantation thereof, and the government of the people thereof.' It thenprovides for four meetings of the general court, each year, and authorizes them'to make laws and ordinances for the good and welfare of said company, andfor the government and ordering of the said lands and plantations, and thepeople inhabiting, and to inhabit, the same.' The same emphatic language isused in the Rhode Island charter. It creates the freemen of Rhode Island acorporation, with perpetual succession; prescribes the times and mode ofchoosing the governor and members of the legislative assembly; and authorizesthe assembly, 'from time to time, to make, ordain, &c., such laws, &c., for thegovernment of the lands hereinafter granted, and for the government of thepeople who now inhabit, or may hereafter inhabit, the same.' 'To establishcourts to settle all matters within said colony.'

25 Both charters, in their grants of legislative, executive and judicial powers,closely and cautiously limit the exercise of those powers 'to the said landshereby granted.' The powers themselves differ very materially as to their extent.The powers granted to Massachusetts, and none other, by the very terms of theMassachusetts charter, are to be exercised within 'the said lands,' described inthe Massachusetts charter, and by officers chosen by the freemen ofMassachusetts. The powers granted to Rhode Island and none other, by the veryterms of the Rhode Island charter, are to be exercised within 'the said landshereinafter mentioned,' and by officers chosen by the freemen of Rhode Island.'And further, our will and pleasure is, that in all matters of public controversywhich may fall out between our colony of Providence Plantations, and the restof our colonies in New England, it shall and may be lawful to and for our saidcolony of Providence Plantations to make their appeals therein to us, our heirsand successors, for the redress of their grievances, in England.' By thesecharters, the following important facts are established:

26 1st. That the first settlers of Massachusetts and Rhode Island were notindependent individuals, tribes or communities, who took possession byconquest or otherwise, for themselves, over their respective territories, claimingand acquiring an original and inherent power of legislation therein; a powerwhich they could consequently transfer to each other, or to any third person orcommunity.

27 2d. They took possession, as subjects of the crown of England, of a portion of acountry claimed to have been discovered by England; they took possession for,and under, the crown of England; that all the powers of legislation which theyever claimed or exercised, was by express grants from the crown; that byaccepting these grants, they acknowledged the power of legislation to be in thecrown; that to Massachusetts was granted the power to legislate over lands asfar south as 'three miles south of Charles river, and of any and every partthereof;' that to Rhode Island was granted the power to legislate as far north asthe southernmost line of Massachusetts; that the power to legislate north of thatline, was delegated by the Massachusetts charter to Massachusetts officers, whowere to be chosen by Massachusetts freemen in a certain mode; that the powerto legislate south of that line was delegated by the Rhode Island charter, toRhode Island officers to be chosen by Rhode Island freemen in a differentmode; that both these powers were entire powers, to be exercised by each, in themode, by the officers chosen, and at the time specified in the respectivecharters; that Massachusetts must exercise the powers over the lands, and allthe lands specified in her charter; that Rhode Island was subject to the samerule; that, consequently, it was not competent for either Massachusetts or RhodeIsland, by any agreement (not ratified by the crown) to vary those powers, or toenlarge or lessen the territory over which they were to be exercised; that in thisrespect they were like all other corporations, and like most other colonialgovernments; that the right to legislate was in the crown, the temporaryexercise of it, alone, was in the colonies; and this exercise might be terminatedat the pleasure of the crown.

28 There was not only no authority in the charters of either of these colonies todelegate any portion of their derivative powers; but there is an implied, if not apositive, prohibition against it, for in 'all matters of public controversy whichmay fall out between our colony of Providence Plantations, and the rest of ourcolonies in New England, it shall and may be lawful to make their appeal to us,in England.' No subject can be considered of 'public controversy' with morepropriety than a dispute between two colonies in regard to their boundaries.Indeed, it is impossible to reconcile the studied and cautious limitation of thepowers granted, even down to those almost of a police nature, with thesupposition of a power to cede any portion of their territories. There was adouble incapacity. Rhode Island was incompetent to sell, and Massachusettsincompetent to purchase, territory, the jurisdiction over which was exclusivelyin the crown. It would be a startling proposition, that Jamaica could cede toBermude this jurisdiction over a part of her island. Even the compromise of adisputed line, would derive all its validity from the express or impliedratification of the crown.

29 From these charters, then, we arm ourselves with the following facts to startwith: 1st. That Massachusetts and Rhode Island, from the date of their charters,1628 and 1663, down to 1775, were not sovereign independent states, butpolitical corporations, possessed, as trustees for the people, and by grant fromthe crown of England, of jurisdiction over certain specified limits. 2d. Thatneither of the charters contained any authority to delegate this jurisdiction, orany portion of it, nor any authority to acquire jurisdiction over any other landsthan those specified in their charters. 3d. That as these charters limit the southline of Massachusetts to 'three miles south of Charles river, and of any andevery part thereof,' and grant to Rhode Island jurisdiction up to that line; thatRhode Island is still entitled to that line, unless it appears upon the face of thisbill, that it has been expressly ceded to Massachusetts, by the crown of England,or by Rhode Island, with the express or implied assent of the crown.

30 With this preparation, we will approach the years 1710 and 1718, when theagreements, upon which Massachusetts relies, were made. Those agreementsare copied into the bill, and were made by commissioners, with full authorityfrom the two states. After they were concluded by the commissioners, and theline run in 1718, to which Massachusetts has ever since claimed, they wereaccepted by the legislatures of both states; but never formally ratified. All theallegations in the bill, in relation to those agreements, whether true or untrue inpoint of fact, must be taken for truth, for all the purposes of this trial; becausethey are admitted by the demurrer.

31 One material allegation is, 'that a short time previous to the year 1709, theinhabitants of said colony of Rhode Island, entered upon certain parts of saidlands adjoining the northern boundary of said colony, and made improvementsthereon, and grants thereof.' The bill then states the existence of disputesbetween the inhabitants of the two states, in relation to the boundary line; andthat, in consequence of said disputes between said inhabitants, the two colonialgovernments appointed commissioners to ascertain and settle the northernboundary line of said colony of Rhode Island; that these commissioners met atRoxbury, on the 19th January 1711.

32 'That the Massachusetts commissioners then and there represented to the RhodeIsland commissioners, that Woodward and Saffrey, skilful and approved artists,in 1642, had ascertained the point or place three English miles south of theriver called Charles river, or of any and every part thereof, and had there set upa stake; and that the said Rhode Island commissioners, relying on saidrepresentations, and verily believing the said point or place to have beencorrectly ascertained, and the said place, where said stake was alleged to have

been set up as aforesaid, to be three English miles, and no more, south of saidCharles river, signed and sealed a certain writing, called an agreement in thewords following.'

33The agreement itself sets forth the authority of the two governments conferredupon the commissioners, and a statement of the inducements to settle thedispute in an amicable manner, and then proceeds to state, 'That they havemutually agreed, that the stake set up by Woodward and Saffrey, skilfulapproved artists, in 1642, and since often renewed, in lat. 41° 55', being threeEnglish miles distant southward from the southernmost part of the river, calledCharles river, agreeable to the letters-patent for the Massachusetts province, beaccompted and allowed on both sides, the commencement of the line betweenMassachusetts and Rhode Island, and to be continued between thegovernments, in such manner as that, after it has proceeded between the twogovernments, it may pass over Connecticut river, at or near Bissel's house, as isdecyphered in the plan and tract of the line by Woodward and Saffrey, nowshown forth to us, and is remaining upon record in the Massachusettsgovernment.'

34 The bill then states, that disputes still continued to exist between theinhabitants; that the boundary line still remained unsettled, as said pretendedagreement was never in any manner ratified or confirmed by said colony ofRhode Island; that new commissioners were appointed in 1717, with fullpowers to settle all disputes; that these commissioners met at Rehoboth, inOctober 1718; that the Massachusetts commissioners made the samerepresentations in regard to the Woodward and Saffrey stations, being but threeEnglish miles south of Charles river, as were made by the formercommissioners from Massachusetts; that the Rhode Island commissioners, fullyconfiding in these representations, signed the second agreement, commonlyknown as the Rehoboth agreement. The agreement then states, 'That the stakeset up by Woodward and Saffrey, in 1642, upon Wrentham Plain, be the stationor commencement to begin the line which shall divide between the twogovernments aforesaid; from which said stake, the line shall run, so as it may,at Connecticut river, be two and a half miles southward of a due west line,allowing the variation of the compass to be nine degrees; which said line shallfor ever remain,' &c.

35 The bill repeatedly states, that the commissioners did not go upon the ground,nor cause the distance from Charles river to be measured, so as to ascertainwhether the Woodward and Saffrey station was but three miles from the riveror not. It also states, that neither of these agreements were ever ratified by thelegislatures of either of the colonies; that both said agreements, and all the

proceedings of the Rhode Island legislature thereon, were founded on the beliefthat the Woodward and Saffrey station had been ascertained, by competent andskilful surveyors, to be but three miles from Charles river, and no more;' thatsuch mistaken belief continued to exist until 1749, when commissioners wereagain appointed by both colonies. The act appointing the Rhode Islandcommissioners is set out in the bill. Its preamble is as follows: 'Whereas, thenorthern line of this colony has never been settled according to the royalcharter: and whereas, divers persons have made application to this assembly,and have set forth their just right to be under the jurisdiction of this government,as dwelling within the bounds thereof; and that the province of MassachusettsBay have and do unjustly exercise jurisdiction over them: In order, therefore,'&c.

36 The Rhode Island commissioners met at Wrentham, after giving theMassachusetts commissioners notice of the time and place; and after waiting forthem two days, they commenced measuring the distance from the mostsoutherly part of Charles river to the Woodward and Saffrey station, thestarting point of the line agreed upon by the commissioners in 1710 and 1718,and instead of three miles from Charles river, as had been stated by theMassachusetts commissioners, and as was laid down upon the Woodward andSaffrey map, they found it to be over seven miles. These commissionersmeasured three miles due south from the most southerly part of Charles river,and from the point extended a line due west, until it reached to Connecticutline. Upon this east and west line, only three miles south of Charles river, theyerected various monuments. The Massachusetts commissioners refused anyparticipation in the measurement of the distance of three milles south of Charlesriver, but adhered to the line established four miles farther south, by theagreements of 1710 and 1718.

37 Three lines, then, have been run between these two states. The first in 1720, byagreement of the commissioners of both parties, beginning at the Woodwardand Saffrey station, 'being three miles south of Charles river, agreeable to theletters-patent for the Massachusetts province, and to be continued between thetwo governments in such manner that it may pass over Connecticut river at ornear Bissel's house.' The second line was by the agreement of thecommissioners of the two states, in 1718, and starting from the same point, theWoodward and Saffrey station, 'from which said stake the dividing line shallrun, so as it may, at Connecticut river, be two miles and a half to the southwardof a due west line.' These two agreements differ materially in the course of theline, the first terminating at the west end, several miles farther south than thesecond. The third line was run by the Rhode Island commissioners alone (theMassachusetts commissioners having declined any agency in it), in 1750, and

not only its termination at the west end, but its commencement at the east end,was between four and five miles farther north than the two former lines. It isalleged in the bill, that Rhode Island first discovered that the Woodward andSaffrey station was over seven miles south of Charles river, in 1749 or 1750,when this last line was run. It is also alleged, in the bill, that Massachusetts tookpossession as far south as the line established in 1719, immediately after thatperiod; and has been in the possession of the territory between that and the linerun by the Rhode Island commissioners, in 1750, ever since 1791. It is alsostated, as a fact, 'that the place from which said line was run (the line of 1719)was and is more than seven miles south of the river called Charles river, and ofany and every part thereof.'

38 Upon the whole facts, as stated in the bill, and admitted by the demurrer, thedefendant contends, that she is entitled to continue her possession of thedisputed territory: 1st. Because jurisdiction over that territory, was ceded to her,by force of the agreements of 1710 and 1718. 2d. Because, having been in theactual possession of that jurisdiction, as the bill itself states, from 1719, downto the filing the bill in 1832, she has gained a title to jurisdiction, by possessionand prescription. All the material and important facts in relation to the firstpoint; the legal effect of the agreements, standing by themselves, have beenstated; except the allegation distinctly made, that these agreements were neverratified by the crown. We will now consider briefly the question, do theseagreements, by themselves, infer any right to jurisdiction, over the territory indispute? A recapitulation of the facts bearing upon the validity of theseagreements, may aid us in estimating the force of the opposite argument.

39 1. Massachusetts admits, that her chartered line on the south, is an east and westline, three miles south of Charles river; and that the north line of Rhode Island,by her charter, is the south line of Massachusetts. Consequently, she admits,that, by the express terms of the two charters, the territory in dispute belongedto Rhode Island, anterior to 1710, being all that territory lying more than threemiles south of Charles river; and the south line of it, as claimed and occupiedby Massachusetts, 'more than seven miles from Charles river, and from any andevery part thereof.'

40 2. She admits, that the two agreements of 1710 and 1718, establishing theWoodward and Saffrey station, were entered into, under the representation bythe Massachusetts commissioners, that the station had been fixed andestablished by skilful surveyors, and was but three miles from Charles river;that the map of these artists was produced by the Massachusettscommissioners, in confirmation of this representation; and that the RhodeIsland commissioners, confiding in this false representation, entered into these

agreements, under the full belief that said station was but three miles fromCharles river, and no more. Massachusetts now admits, that said station, andsaid line run from it, were more than seven miles from Charles river, and fromany and every part thereof.

413. She admits, that these agreements were never ratified by the crown ofEngland; that the mistake was not discovered by Rhode Island, until 1749 or1750, when her commissioners ran a line three miles south of Charles river, itscourse due east and west; and that Rhode Island has claimed to that line eversince.

42 These are the facts admitted by the pleadings, upon which the validity andbinding effect of the agreements depend. In the argument of that question, it hasnot been pretended, that such agreements between two individuals, would bebinding either in law or in justice. The misrepresentation of one party, and themistake of the other, would render them a mere nullity. The only ground uponwhich it is attempted to support them is, that they amount to a treaty betweentwo sovereign states; and that it is a principle of the laws of nations, that alltreaties are binding, whatever may have been the mistake of either party.

43 We do not admit the existence of any such rule among nations. A practicaldifficulty in annulling treaties between sovereign states, founded on mistake,may arise from the absence of any common arbiter between them. But suppose,a common arbiter, by the agreement of parties, fully authorized to settle anyquestion of boundary between two nations of sovereign and independent power,and one of them should rely upon a treaty, which it admitted was founded in amistake of the other party, caused by its own misrepresentations; is there anytribunal in the civilized world that would sanction such a treaty? This court is atribunal established by the constitution, to decide all such questions betweenthe states, that have become parties to that constitution. Was it the intention anddesign of the constitution, that this court should decide without regard to anyfixed principles of law or justice? If a treaty between two states, founded inadmitted mistake, is binding, why not a treaty founded in fraud? If fraud ormistake will not vitiate a treaty between states, will it vitiate any other contract?Without entering into this subject, we merely express our dissent to the wholedoctrine. Our main answer to it is, that in 1710 and 1718, Massachusetts andRhode Island were not sovereign and independent states, but colonialgovernments, with powers of an extremely limited character. They weretrustees of legislative powers, under a grant from another nation, made for thebenefit of the people. No agreement in relation to their jurisdiction, even thoughmade fairly and understandingly, could bind the crown, until ratified by thecrown. How then could an agreement made under an admitted mistake, be

allowed a more binding efficacy, than an agreement made understandingly?Besides, it is expressly averred in the bill, that neither of these agreements wereever ratified by the crown; and the demurrer admits that fact. We have notmerely the admission of Massachusetts, that these agreements were founded inmistake, but the mistake is apparent on the face of the agreements themselves.The agreement of 1810 states, expressly, that they were to begin the line fromthe Woodward and Saffrey station, 'being three English miles distant from thesouthernmost part of Charles river, agreeable to the letters-patent.' There wasnever any dispute between the parties, but that the line was to be three milessouth of the river, and no more. That was the agreed basis of the contract. Theonly dispute was, what course that line should run; Rhode Island contending fora due west course, and Massachusetts for a course south of west.

44 The question, therefore, resolves itself into this: can an agreement, founded inan admitted mistake, or a mistake apparent upon the face of the instrument, besupported, either in law of equity? For a much stronger reason, can such anagreement between parties, having no power to contract in relation to thesubject-matter, be supported? An omission in an agreement by mistake, standson the same ground as an omission by fraud. Ramsbottom v. Gosden, 1 Ves. &B. 168; 3 Atk. 338; 6 Ves. 344, note c. 'The general rule is, that an act done, orcontract made, under a mistake, or ignorance of a material fact, is voidable andrelievable in equity.' Story's Equity Jurisprudence, 155; 9 Ves. 275; Bingham v.Bingham, 1 Ves. sen. 126; Gee v. Spencer, 1 Vern. 32. Cocking v. Pratt, 1 Ves.sen., 400, is a strong case, resembling the present in many of its features.Honour v. Honour, 1 P. Wms. 123, is also applicable to the present case.Articles, and a settlement in pursuance thereof, were both made beforemarriage, but the settlement veried from the uses of the articles. Decreed to setthe settlement aside. Chancellor—'It is a plain mistake in varying thesettlement from the articles, and this appearing upon the face of the papers, andthe plain reason of the thing, length of time is immaterial.' In the case beforethe court, the mistake is admitted; it also appears upon the face of theagreements. The case of Leonard v. Leonard, 2 Ball & Beat. 183, was a case ofcompromise. Lord MANNERS said, that 'the plaintiff acted under an evidentmistake. The defendant cannot be permitted to hold an estate which manifestlybelongs to the plaintiff; and which the defendant has obtained either by themistake or misrepresentation of the agent.'

45 We shall dismiss this part of the case, and very briefly consider the question,whether length of time affords any defence to Massachusetts. We have variousanswers to the argument from time. In the first place, time is no objection torelief, where the mistake is admitted; if the case arises between the originalparties to the contract; and if the plaintiff has not misled the defendant, by

concealing the mistake an undue time, after it was discovered. In the presentcase, it is admitted, that Rhode Island disclosed the mistake as soon as it wasdiscovered. It comes within the principle of Honour v. Honour, 1 P. Wms. 123;the mistake 'being apparent on the face of the papers, length of time isimmaterial.' In the second place, length of time, though a bar in some cases to aclaim for property, does not affect a claim for jurisdiction.

46 These are questions, however, more proper to be discussed, when the generalmerits of the case come before the court, upon a general denial of the plaintiff'sbill. The principal question upon these pleadings is, whether length of time canbe taken advantage of, upon a demurrer? As this is a mere question ofauthority, we shall content ourselves with a reference to such cases as bear moststrongly upon the point. Both in law and in equity, time has a two-foldoperation; often confounded by unskilful persons; but possessing, in reality,characters wholly distinct, and wholly unlike each other. In many cases, itoperates as a bar to the plaintiff's remedy. In a class of cases more numerous, itoperates as a witness in favor of the defendant. In this last mode of itsoperation, it has nothing to do with the remedy, but it is applied to the merits ofthe plaintiff's claim.

47 In its first mode of operation, it is called a statute of limitations; and unless thecase is embraced by certain enumerated exceptions, such as infancy, covertureand other disabilities, which must be specially stated in answer to the specialplea of the defendant, it is an unyielding and peremptory bar to the plaintiff'saction. Still, the demand exists for certain purposes, although the remedy isdestroyed. It still would form a sufficient consideration for a new promise. Butin its second mode of operation, it is not necessary to plead the lapse of timerelied upon. It is introduced as a witness in the cause before the jury; and likeall other witnesses, its testimony may be contradicted or qualified in a thousandways, because it swears to matters of fact alone. Thus, in case in which twentyyears operate as presumptive evidence of a grant; the opposite party maydisprove the existence of the grant, or remove the presumption, by any meansin his power, and the jury are to judge of the weight of conflicting testimony.

48 But a plea of the statute of limitations, if admitted by the plaintiff, that is, if headmits that the time has elapsed, and that his case does not come within one ofthe specified exceptions, is matter of mere law, to be decided by the court. Astatute of limitations prescribes a definite time, six years, or twenty years,beyond which no action can be brought. It operates alike in all cases, and if thelapse of time is admitted, is fatal to the plaintiff's case. No circumstances canward off its unerring blow. But when time operates as evidence addressed to ajury, the plaintiff may safely admit the lapse of twenty, thirty or fifty years, and

destroy its effect in a thousand different modes. In courts of law, a statute oflimitations must be specially pleaded. Even if it appears upon the face of thedeclaration, that more than the prescribed time has elapsed, still the defendantmust present it anew, in a special plea. But in those cases as to which courts ofequity have concurrent jurisdiction with courts of law, and in which a statute oflimitations applies, if it appear upon the face of the bill, that the prescribed timehas elapsed, and the disabilities mentioned in the statute are not stated in thebill in avoidance of the bar, the defendant may demur to the bill. Thisdifference in the mode of pleading the statute in the two courts is simply this,that in a court of law the statute must be pleaded by the defendant, and thedisabilities, if any, introduced in the plaintiff's replication. But in a court ofequity, if the lapse of time is apparent on the face of the bill, the disabilities inavoidance must also be stated, otherwise the defendant may demur to the wholebill.

49 In the case now under consideration, it is not pretended, that time operates as abar. It the case had been on the law side of the court, there is no statute oflimitations that could be pleaded in bar to the remedy. There is no provision inany statute in England, or this country, applicable to the subject-matter of thissuit, jurisdiction—nor to the parties, sovereign states. Time, therefore, can onlycome to the aid of the defendant as a witness, to prove possession on the part ofthe defendant, and acquiescence on the part of the plaintiff. Like all otherwitnesses, his testimony must be offered to the jury upon an issue of fact, andnot to the court upon an issue of law. In the case of Deloraine v. Brown, 3 Bro.C. C. 646 (Lond. edit. of 1819, by Eden), is a note of Lord THURLOW'Sopinion, preserved by Redesdale, which places this question in its true light.

50 'The party who demurs,' said his lordship, 'admits everything that is wellpleaded, in manner and form as pleaded; and a demurrer ought, therefore, in acourt of law, to bring before the court a question of mere law; and in a court ofequity, a question of law of equity merely. The demurrer, therefore, must betaken to admit the whole case of fraud made by the bill, and the argument tosupport it must be, not that a positive limitation of time has barred the suit, forthat would be a pure question of law, but that, from long acquiescence, it shouldbe presumed, that the fraud charged did not exist, or that it should be intendedthat the plaintiff had confirmed the transaction. The must be an inference offact, and not an inference of law, and the demurrer must be overruled, becausethe defendant has no right to avail himself, by demurrer, of an inference of fact,upon matter upon which a jury in a court of law would collect matter of fact todecide their verdict, or a court would proceed in the same manner in equity.What limitation of time will bar a suit, where there is no positive limitation, orunder what circumstances the lapse of time ought to have that effect, must

depend upon the facts of the particular case, and the conclusion must be aninference of fact, and not an inference of law, and therefore, cannot be made ondemurrer. But where the defence is not a presumption, from long acquiescence,but a positive limitation of time, which the court, by analogy to the statute oflimitation, adopts, it may clearly be taken advantage of by demurrer.'

51 In the case of Hovenden v. Lord Annesley, 2 Sch. & Lef. 629, it was decided,that in cases of a positive limitation of time as a bar to the remedy, a demurrerto the bill would be sustained. That case was decided by Lord REDESDALE, in1806. In the edition of Lord Redesdale's Treaties upon Equity Pleading, byJeremy, the edition of 1836 (revised by Redesdale himself), page 212, thedistinction taken in the above note and opinion of THURLOW, is maintained.Mr. Justice STORY, is in his very able Treatise upon Equity Pleading, p. 378,states the doctrine with great clearness. 'The same principle,' he says, 'willapply to a bill which states a case within the statute of limitations at law, andupon which courts of equity follow the analogy of the law, for, under suchcircumstances, courts of equity hold that the objection may be taken as adefence by demurrer.' In one of the latest treatises upon Chancery Practice, byDaniell (published in 1838, Lond. edit.), p. 43-4, all the decisions upon thissubject are cited, and they show conclusively that a demurrer can be sustainedin cases analogous to the statute of limitations. But he says, 'It is to be remarkedhere, that all the above cases were decided upon the ground of their comingwithin the statute of limitations, or the rules of the court which have beenadopted in analogy to the statute, and that, therefore, there was a positivelimitation of time upon which the court could proceed. Where, however, thereis no such positive limitation, the question whether the court will interfere ornot, depends upon whether, from the facts of the case, the court will inferacquiescence, or confirmation or release. Such inference is an inference of factand not law, and connot be raised on demurrer.' He cites Cuthbert v. Creasy,Madd. Ch. 189, as a recent decision of the English chancery upon this verypoint. Upon the mere technical law of pleading, therefore, we feel greatconfidence that no advantage of time can be taken in the present case, bydemurrer.

52 But besides the mere technical objection, there are reasons lying close to themerits of the case, which show conclusively that extreme injustice would bedone to Rhode Island, to allow the lapse of time to be taken advantage of undera demurrer. We have stated in our bill, that Massachusetts took possession ofthe territory in dispute in 1719, and has continued in possession ever since. Butwe have also stated various matters in avoidance of this possession. In page 43of the printed case it is stated 'that the said province of Massachusetts, on orabout the 14th of May 1719, wrongfully took possession of all that tract, &c.'

'And has since continued, wrongfully, to exercise jurisdiction over the same.'The bill then proceeds to state that the line established by the agreement of1719, was never confirmed by Rhode Island, 'but that, on the contrary, theclaim of said colony uniformly was, that the true dividing line on the north partof said colony, was a line drawn three English miles, and no more, south of thesouth part of said Charles river, or of any or every part thereof, as defined andgranted by the letters-patent aforesaid; and that the claim of Massachusetts toany other or different line was never acquiesced in, or consented to, by saidcolony of Rhode Island; and that the said claim of the said colony was publiclyand frequently urged and maintained by said colony, and by the freemen andinhabitants thereof.'

53 Here are clear and distinct allegations of facts. The demurrer admits the truth ofthem. It admits, that Rhode Island never acquiesced in the possession or claimof Massachusetts, but always maintained her claim for the charter line as nowcontended for. This demurrer admits the facts of non-acquiescence. It admitsthe truth of all evidence which the plaintiff by any possibility can offer, underthat general allegation. The very question as to time in this case is, has RhodeIsland acquiesced in the possession of Massachusetts? In her bill, she says shehas not; and she has a right to offer any and all evidence, which tends to provethat fact. But the demurrer excludes that evidence, by admitting the fact itself.It will not answer, to admit the fact in pleading, and deny it in the argument. Itmust be denied in pleading, so that Rhode Island may offer her evidence, or itcannot be denied at all. Can it then be gravely contended by the learnedcounsel of the very lofty and imposing state of Massachusetts that agreementsentered into under a clear and admitted mistake, caused by her ownmisrepresentations, can stand for one moment in any court, in any civilizednation in the world? Can it be contended, that any length of possession, undersuch agreements, admitted to have been wrongfully taken in the first instance,wrongfully continued, and never acquiesced in by Rhode Island, can conferupon Massachusetts any title? Our difficulty has been to find, in the wholerange of the case, a spot of debatable ground.

54 Webster, in support of the demurrer.—The bill of Rhode Island asks the courtto disturb a boundary between that state and Massachusetts, which has beensettled for more than 200 years. This is a question of great magnitude; and thematter for the decision of the court is, whether a case has been made out in thebill, on which Massachusetts may resist the claim thus presented.

55 The charter of Massachusetts originated in a grant by the council established atPlymouth, on the 19th of March 1628, to Sir Henry Rosewell and others; bywhich the soil and jurisdiction of the territory, now belonging to the

commonwealth of Massachusetts, was granted to a southern boundary, to runthree miles south of Charles river. In 1663, the province of Rhode Island wasgranted by King Charles II., and the grant was limited to and by the southernboundary of the colony of Massachusetts. As to the exact location of thisboundary, difficulties arose, and commissioners were appointed by RhodeIsland and Massachusetts; and in 1719, agreements were made by thecommissioners of both parties.

56 What is the ground on which these agreements are to be set aside? It is said tobe, that they were founded in mistake; and that by them Massachusetts hasgained, and Rhode Island has lost, four miles of territory. This is the wholeground. No fraud is charged, none is alleged. No assertion is made in the bill,that advantage was taken by Massachusetts in the adjustment; or that thecommissioners of Rhode Island has not knowledge of the subject confided tothem: and if they had been ignorant, it would not avail. They had full right andfull opportunity to make all necessary examinations. It is said, that under themistake, the line was placed seven miles from Charles river, instead of threemiles; Rhode Island discovered the mistake in 1749, and the proceedings setforth in the bill, show that Rhode Island has not acquiesced in the line thenestablished; the object of this application to the court is to obtain relief from themistake discovered in 1749.

57 The question is, whether this court can interfere, after so long a period; whethertime alone will not prevent the disturbance of an adjustment of such longstanding, and in reference to which no adverse movement has been made fornearly 100 years; and as to which nothing has been done by Rhode Island, otherthan expressions of dissatisfaction. If it were a recent transaction, no adjudgedcases are known to sustain the application; and no principles of public law willsanction the interference of the court. If it was an affair of yesterday, the courtwould not act upon it.

58 Several things were to be ascertained by the commissioners. The course ofCharles river and its branches, and then a line running three miles south of theriver. This was the established charter boundary of Massachusetts, to which thenorthern line of Rhode Island was limited by her charter, granted many yearsafter that of Massachusetts. After all the investigation the commissionersthought necessary, they adopted the Woodward and Saffrey station, as the pointwhich was to determine the boundary line; a point which had been fixed twentyyears before the existence of Rhode Island. No misrepresentations are chargedto the commissioners of Massachusetts; no interference with the inquirieswhich the Rhode Island commissioners might be desirous of making; and thedetermination of the question was made, after every opportunity for

examination. If a mistake was made, which is not admitted, can relief from it benow obtained, where no fraud is imputed.

59 The cases in the books sustain the views of the counsel for the state ofMassachusetts. If better knowledge exist in one party to an agreement than inthe other, the agreement will not be disturbed. 9 Ves. 273. If parties aredealing, and both have equal opportunities of knowledge, the court will notinterfere. In this case, there were no confidential relations between the parties.They were dealing adversely. 1 Ves. jr. 408. If men have agreed to a boundarybetween them, and it may be afterwards disturbed on the ground of mistake, theconsequences would be disastrous, and fatal to the tranquil ownership ofestates. Boundaries must be settled for the assurance of cultivation. Thehusbandman would refuse to improve his land, unless he was at rest on thesubject of the lines and corners of his property. If these principles regulate theconcerns of individuals, how much more necessary are they in the relationsbetween conterminous states. This is supported by the writers on internationallaw. Vattel says, the agreements between nations, however mistaken, are tostand. If this is not so, how shall such disputes be at any time adjusted. Thebooks, and all history, are full of these principles.

60 Mr. Webster referred to the controversy between William Penn and LordBaltimore, in support of these principles; the settlement of the disputes as toboundaries between the states of Kentucky and Tennessee; and to other cases.Will any one say, these adjustments, and the lines established under them, cannow be disturbed on the ground of mistake? It is said, the bill of Rhode Islandcharges the mistake, and the demurrer admits it; and therefore, the whole caseof the complainants is admitted. The question to be decided by the court is notwhether the mistake is admitted, but what is the effect of the mistake. Themistake is immaterial, and this is submitted to the court. If the mistake couldnot entitle the complainant to relief, its admission would not do so. If there hadbeen a fraud; if the commissioners of Rhode Island had been deceived, there isno ground for relief. It is too late, at this distant period, to inquire into such atransaction.

61 This brings the court to the inquiry, what is the effect of lapse of time? But it issaid, the demurrer will not permit the party to avail himself of lapse of time. Inorder to do this, an answer must be put in. But the lapse of time is on the face ofthe complainant's bill; and when this is so, it will avail the party demurring.This is a question of pleading. The court has adopted the rules and principles ofthe court of chancery in England; and they will regard the decisions of theEnglish courts of chancery on this question. It has been settled in these courtsfor half a century. The case of Foster v. Hodgson, 19 Ves. 180-4, determines

this point: cited also, 1 Ves. & B. 535-6; 7 Paige 195; 6 Ibid. 590; 2 Sch. & Lef.630; Story's Equity Pleading 378, 389. The defendant, the state ofMassachusetts, is right, therefore, in the form of pleading; and lapse of time,possession and acquiescence, are a complete par against fraud. The bill statesthat the mistake was discovered in 1749, and no proceedings took place in thiscourt until 1835-eighty-six years afterwards!

62 There are two modes in which lapse of time may be taken advantage of incourts of equity. The first, where the law expressly applies to the case. A courtof equity then adopts the same rule. 2 Jac. & Walk. 191; 2 Story's Equity Jur.735. Second, wherever there has been laches, the statute of limitations will beapplied by courts of chancery. Story 735-6. In this case, both rules apply. 'Therehas been most abundant laches. Why did not Rhode Island apply to the privycouncil—to the continental congress—to this court, established in 1789? This isacquiescence; no matter what the complainants say, it is acquiescence. Such acourse of aquiescence cures fraud, if any fraud had existed. 2 Story's Equity739, note: cited also, Story's Equity Plead. 379; 9 Pet. 405; Boon v. Chiles, 10Ibid. 177; 1 Story's Equity, 139, 189, 502; 2 Sch. & Lef. 636. The complainantsassert, that lapse of time is only evidence against their title, but the demurrer ofthe defendant takes away the operation of the evidence. This cannot be, or therewould be no demurrer for lapse of time on the face of the bill. But courts ofequity adopt a higher principle. They will not assist a plaintiff to maintain astale claim. They will save a party from the trouble of resisting such demands.It is manifest, then, that if there was mistake; if there was fraud, no relief willbe granted after such a lapse of time.

63 There is another and an important point for the consideration of the court in thiscase. The constitution gives the supreme court a right to decide controversiesbetween the states of the Union. This is a case in which two states havingagreed to an actual and defined boundary, nearly one hundred years ago, comebefore the court, and the court is asked to disturb this boundary, establishedbefore the states came into the confederacy—to change the limits of theterritory each possessed when she entered into it—can this court interfere insuch a matter? Each of the states took her position in the Union, holding theterritory now held, with the actual boundaries to their territories well knownand long established. Independence was declared by the states, with theselimits. The treaty of peace, in 1783, acknowledged the states as they thenexisted. No distribance can be made of the territories of each state, after thismutual recognition, and after this acknowledgment by the nation, to which,before the declaration of Independence and the treaty of peace, they weresubject. No tribunal which has its existence under a constitution of governmentformed after these relations existed, has power to interfere between them in

such a question.

64 TANEY, Ch. J., delivered the opinion of the court.

65 The attention of the court has on several occasions been drawn to this case, bythe important questions which have arisen in different stages of theproceedings. At the last term, it came before us upon a plea in bar to thecomplainant's bill, which, upon the motion of the complainant, had been setdown for argument. This part of the case is reported in 14 Pet. 210, where theallegations contained in the bill are so fully set out, that it is unnecessary torepeat them here. The court having overruled the plea, for the reasons stated inthe report of the case, the defendant has since demurred; and in this state of thepleadings, the question is directly presented, whether the case stated by RhodeIsland, in her bill, admitting it to be true, as there stated, entitles her to relief.

66 The character of the case, and of the parties, has made it the duty of the court toexamine very carefully the different questions which, from time to time, havearisen in these proceedings. And if those which are brought up by the demurrerwere new to the court, or if the judgment now to be pronounced wouldseriously influence the ultimate decision, we should deem it proper to hold thesubject under advisement, until the next term, for the purpose of giving to it amore deliberate examination. But although the questions now before the courtdid not arise upon the plea, and, of course, were not then decided, yet much ofthe argument on that occasion turned upon principles which are involved in thecase as it now stands. The facts stated in the bill were brought before us, andthe grounds upon which the complainant claimed relief were necessarilydiscussed in the argument at the bar, and the attention of the court stronglydrawn to the subject. The whole case, as presented by the bill and demurrer, hasbeen again fully and ably argued, at the present term; and as the court has madeup its opinion, and are satisfied that the delay of our judgment to the next termwould not enable us to obtain more or better light upon the subject, it would beuseless to postpone the decision.

67 The demurrer admits the truth of the facts alleged in the bill, and it is sufficientfor the purposes of this opinion, to state in a few words the material allegationscontained in it. 1. It alleges that the true boundary line between Massachusettsand Rhode Island, by virtue of their charters from the English crown, is a linerun east and west, three miles south of Charles river, or any or every partthereof; and sets out the charters which support, in this respect, the avermentsin the bill. 2. That Massachusetts holds possession to a line seven miles south ofCharles river, which does not run east and west, but runs south of a west course;and that the territory between this line and the true one above mentioned,

belongs to Rhode Island, and that the defendant unjustly withholds it from her.3. That Massachusetts obtained possession of this territory, under certainagreements and proceedings of commissioners appointed by the two colonies,which are set out at large in the bill; and the complainant avers, that thecommissioners on the part of Rhode Island, agreed to this line, under themistaken belief that it was only three miles south of Charles river; and that theywere led into this mistake by the representations made to them by thecommissioners on the part of Massachusetts, upon whose statement they relied.4. That this agreement of the commissioners was never ratified by either of thecolonies: and the bill sets out the various proceedings of the commissioners andlegislatures of the two colonies, which, if not sufficient to establish thecorrectness of the averment, are yet not incompatible with it. 5. The bill furtherstates, that the mistake was not discovered by Rhode Island until 1740, whenshe soon afterwards took measures to correct it; that she never acquiesced in thepossession of Massachusetts, after the mistake was discovered, but has eversince continually resisted it; and never admitted any line as the true boundarybetween them, but the one called for by the charters. Various proceedings areset out, and facts stated in the bill, to show that the complainant neveracquiesced; and to account for the delay in prosecuting her claim. Whether theyare sufficient or not for that purpose, is not now in question. They are certainlyconsistent with the averment, and tend to support it.

68 The case, then, as made by the bill, and to be now taken as true, is substantiallythis: The charter boundary between these colonies was three miles south ofCharles river; and the parties intending to mark a line in that place, marked itby mistake, four miles further south, encroaching so much on the territory ofRhode Island; and the complainant was led into this mistake by confiding in therepresentations of the commissioners of the defendant. And as soon as the errorwas discovered, she made claim to the true line, and has ever since contendedfor it. We speak of the case, as it appears upon the pleadings. It may prove to bea very different one, hereafter, when the evidence on both sides is produced.But taking it as it now stands, if it were a dispute between two individuals, inrelation to one of the ordinary subjects of private contract; and there had beenno laches to deprive the party of his title to relief; would a court of equitycompel him to abide by a contract entered into under such circumstances?

69 It is one of the most familiar duties of the chancery court, to relieve againstmistake, especially, when it has been produced by the representations of theadverse party. In this case, the fact mistaken was the very foundation of theagreement. There was no intention on either side to transfer territory, nor anyconsideration given by the one to the other to obtain it. Nor was there anydispute arising out of conflicting grants of the crown, or upon the construction

of their charters, which they proposed to settle by compromise. Each partyagreed, that the boundary was three miles south of Charles river; and the onlyobject was, to ascertain and mark that point; and upon the case, as it comesbefore us, the complainant avers, and the defendant admits, that the placemarked, was seven miles south of the river, instead of three, and was fixed onby mistake; and that the commissioners of Rhode Island were led into the error,by confiding in the representations of the Massachusetts commissioners. Now,if this mistake had been discovered a few days after the agreements were made,and Rhode Island had immediately gone before a tribunal, having competentjurisdiction, upon principles of equity, to relieve against a mistake committedby such parties, can there be any doubt, that the agreement would have been setaside, and Rhode Island restored to the true charter line? We think not.Agreements thus obtained cannot deprive the complainant of territory whichbelonged to her before; unless she has forfeited her title to relief, byacquiescence or unreasonable delay.

70 But it has been argued, on the part of the defendant, that assuming theagreement to have been made by mistake, and that the complainant would havebeen entitled to set it aside, if she had prosecuted her claim within a reasonabletime; yet, as Massachusetts entered into the disputed territory, immediatelyafter the agreement, and has held it ever since, the complainant is too late inseeking relief; that after such a lapse of time, she is barred by prescription, ormust be presumed to have acquiesced in the boundary agreed upon; and that ifshe did not acquiesce, she has been guilty of such laches and negligence inprosecuting her claim, that she is no longer entitled to the countenance of acourt of chancery. The answer to this argument is a very plain one. Thecomplaint avers, that she never acquiesced in the boundary claimed by thedefendant, but has continually resisted it, since she discovered the mistake; andthat she has been prevented from prosecuting her claim, at an earlier day, by thecircumstance mentioned in her bill. These averments and allegations, in thepresent state of the pleadings, must be taken as true; and it is not necessary todecide now, whether they are sufficient to excuse the delay. But when it isadmitted by the demurrer, that she never acquiesced, and has, from time totime, made efforts to regain the territory, by negotiations with Massachusetts,and was prevented, by the circumstances she mentions, from appealing to theproper tribunal to grant her redress; we cannot undertake to say, that thepossession of Massachusetts has been such as to give her a title by perscription;or that the laches and negligence of Rhode Island have been such as to forfeither right to the interposition of a court of equity.

71 In cases between individuals, where the statute of limitations would be a bar atlaw, the same rule is undoubtedly applied in a court of equity. And when the

fact appears on the face of the bill, and no circumstances are stated, which takethe case out of the operation of the act; the defendant may undoubtedly takeadvantage of it by demurrer, and is not bound to plead or answer. The timenecessary to operate as a bar in equity, is fixed at twenty years, by analogy tothe statute of limitations; and the rule is stated in Story Equity Plead. 389, andis supported and illustrated by many authorities cited in the notes. It wasrecognised in this court in the case of Elmendorf v. Taylor, 10 Wheat. 168-75.But it would be impossible, with any semblance of justice, to adopt such a ruleof limitation in the case before us. For here two political communities areconcerned, who cannot act with the same promptness as individuals; theboundary in question was in a wild unsettled country, and the error not likely tobe discovered, until the lands were granted by the respective colonies, and thesettlements approached the disputed line; and the only tribunal that couldrelieve, after the mistake was discovered, was on the other side of the Atlantic,and not bound to hear the case and proceed to judgment, except when it suitedits own convenience. The same reasons that prevent the bar of limitations,make it equally evident, that a possession so obtained and held byMassachusetts, under such circumstances, cannot give a title by perscription.The demurrer, therefore, must be overruled.

72 But the question upon the agreements, as well as that upon the lapse of time,may assume a very different aspect, if the defendant answers and denies themistake; and relies upon the lapse of time as evidence of aquiescence, or ofsuch negligence and laches as will deprive the party of his right to the aid of acourt of equity. It will then be open to him to show that there was no mistake;that the line agreed on is the true charter line; or that such must be presumed tohave been the construction given to the charters by the commissioners of bothcolonies; or that the agreement was the compromise of a disputed boundary,upon which each party must be supposed to have had equal means ofknowledge. So too, in relation to the facts stated in the bill to account for thedelay. It will be in the power of the complainant to show, if she can, that herlong-continued ignorance of an error (which, if it be one, was palpable andopen), was occasioned by the wild and unsettled state of the country; and thatthe subsequent delay was produced by circumstances sufficiently cogent tojustify it, upon principles of justice and equity; or was assented to byMassachusetts, or occasioned by her conduct. And on the other hand, it will bethe right of the defendant to show, if she can, that Rhode Island could not havebeen ignorant of the true position of this line until 1740; or, if she remained inignorance until that time, that it must have arisen from such negligence andinattention to her rights, as would render it inexcusable; and should be treated,therefore, as if it had been acquiescence with knowledge; or she may show that,after the mistake is admitted to have been discovered, Rhode Island was guilty

of laches in not prosecuting her rights in the proper forum, and that the excusesoffered for the delay are altogether unfounded or insufficient; and thatMassachusetts never assented to it, nor occasioned it.

73 We state these questions as points that will remain open upon the final hearing,for the purpose of showing that the real merits of the controversy could nothave been finally disposed of upon the present pleadings; but without meaningto say, that other questions may not be made by the parties, if they shallsuppose them to arise upon the proceeding hereafter to be had. The pointsabove suggested, which are excluded by the case as it now stands, make itevident, that this controversy ought to be more fully before the court, upon theanswer, and the proofs to be offered on both sides, before it is finally disposedof. The court will, therefore, order and decree that the demurrer be overruled;and that the defendant answer the complainant's bill, on or before the first dayof August next.

74 THIS cause came on to be heard, on the amended bill and demurrer, and wasargued by counsel: On consideration whereof, it is now here ordered by thiscourt, that the said demurrer be and the same is hereby overruled; and it is alsonow further here ordered by this court, that the defendant answer the bill ofcomplaint, as amended, on or before the first day of August next.